Something almost unprecedented just happened at the United States Court of Appeals for the Third Circuit, and if you care about AR-15s, semi-automatic rifles, and so-called large-capacity magazines, you need to understand what this means. On August 21, 2025, Chief Judge Michael Chagares issued a sua sponte order — meaning the court acted entirely on its own initiative, without any party requesting it — directing that the consolidated New Jersey firearms cases be reheard en banc before the full Third Circuit. Oral argument is now set for October 15, 2025, in Philadelphia.
What Cases Are We Talking About?
The Third Circuit is sitting on consolidated challenges to New Jersey’s sweeping bans on semi-automatic “assault firearms” and magazines holding more than ten rounds. The cases are Cheeseman v. Platkin, brought by the Firearms Policy Coalition, and Association of New Jersey Rifle & Pistol Clubs, Inc. v. Platkin, which includes two separate suits from ANJRPC — one targeting the magazine ban, one targeting the rifle ban. A district court judge previously held that the rifle ban violated the Second Amendment but upheld the magazine ban. Both sides appealed.
A three-judge panel heard oral argument on July 1, 2025. The panel was, by any honest assessment, a terrible draw for the Second Amendment — I said so at the time. A 2-to-1 anti-gun ruling was all but certain. Then something remarkable happened.
Reading the Tea Leaves on This Sua Sponte Order
Here is my read on what almost certainly occurred inside the Third Circuit. When a panel drafts an opinion, the rules require that draft to circulate to every active judge on the court. My strong prediction is that the three-judge panel circulated a draft holding that AR-15s and large-capacity magazines are not protected arms under the Second Amendment. What happened next is written in this sua sponte order: the full Third Circuit looked at that draft, concluded it was wrong, and voted to pull the case before the panel ruling could ever become public.
En banc review in the Third Circuit is genuinely extraordinary. It consumes enormous court resources. You do not convene the entire active bench over a three-judge panel unless the full court has concluded that the panel got it wrong. And since we know exactly where that panel was going, the only coherent explanation is that a majority of the Third Circuit’s active judges refused to let an anti-Second Amendment ruling stand.
That is fantastic news — almost without precedent in how quickly it happened.
The Composition Question: Why Confirmation of Jennifer Mascott Is Mission Critical
Now for the strategic dimension, and I am going to be direct. The Third Circuit currently has a slight numerical edge of Republican-appointed judges over Democratic-appointed judges — something like seven to six, with Emil Bove, confirmed on July 29, 2025, as the newest Trump appointee. There is also Judge Smith, a senior judge who sat on the original panel and may be counted as favorable to the Second Amendment.
But the margin is razor-thin. That is why the pending Senate confirmation of Jennifer Mascott to the Third Circuit is not a routine judicial appointment — it is mission critical for this case. Professor Mascott, who clerked for both Justice Clarence Thomas and then-Judge Brett Kavanaugh, has been nominated to fill a Third Circuit seat. She is not yet confirmed. She must be confirmed by the United States Senate before October 15, 2025, so that she can participate in en banc argument on this very case.
Every Second Amendment supporter needs to understand that this is not abstract. One additional vote on an en banc court can mean the difference between a historic Second Amendment victory and another circuit dragging its feet.
The Circuit Split That Would Force SCOTUS’s Hand
Here is the bigger picture. Justice Brett Kavanaugh, concurring in the denial of certiorari in Snope v. Brown on June 2, 2025 — the Maryland AR-15 ban case — wrote explicitly that he expects the Supreme Court to take an AR-15 ban case “in the next Term or two.” What Kavanaugh was signaling is that the Court needs the lower circuits to work through these questions first.
The Third Circuit’s situation is uniquely important for exactly that reason. The Ninth Circuit and the Seventh Circuit have both ruled, wrongly, that semi-automatic rifles and large-capacity magazines are not protected arms. The Fifth Circuit, which is reliably strong on the Second Amendment, covers Texas, Louisiana, and Mississippi — states with no assault weapons bans, so no cases to generate the needed ruling.
New Jersey is different. New Jersey has some of the harshest gun laws in the nation, and it sits inside the Third Circuit, which now appears ready to rule in favor of the Second Amendment. If the Third Circuit en banc holds that AR-15s and large-capacity magazines are constitutionally protected arms, that creates a direct circuit split with the Seventh and Ninth Circuits. That split — combined with Kavanaugh’s explicit signal — would give even a cautious Chief Justice John Roberts every traditional reason to grant cert.
I said at a recent Gun Owners of America event that we will have a Supreme Court case on AR-15 bans within the next twelve to eighteen months. What just happened in Philadelphia moves that timeline closer to reality.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.